The United Nations’ Firearms Protocol, the first legally binding instrument of the world body which could have a major effect on the international small arms trade is going into effect. Poland recently became the 40th country to ratify the document which allowed the Protocol to come into action as forty signatures were necessary.

The Protocol commits UN member states signing the document to regulate the manufacture, export, import and transit of firearms. It also requires firearms to be marked and records to be kept for 10 years, and encourages (but does not require) the regulation of arms brokers. The Protocol, however, does not regulate state-to-state (meaning country to country) gun transfers. The United States did not sign the document.

The Protocol sends a “powerful message to criminal gangs and gunrunners around the world — Your time is up!” according to Antonio Maria Costa, executive director of the UN Office on Drugs and Crime (UNODC).

The Firearms Protocol supplements the United Nations Convention against Transnational Organized Crime (2000). The other global agreement on firearms, the UN Program of Action on Small Arms (instituted in 2001) is not legally-binding. There will be a Conference of States Parties to the Protocol to be held October 10-21, 2005 in Vienna.

Definition of Terms

For the purposes of the Protocol:

“Firearm” shall mean any portable barreled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with the domestic law of each country. In no case, however, shall antique firearms include firearms manufactured after 1899;

“Parts and components” shall mean any element or replacement element specifically designed for a firearm and essential to its operation, including a barrel, frame or receiver, slide or cylinder, bolt or breech block, and any device designed or adapted to diminish the sound caused by firing a firearm;

“Ammunition” shall mean the complete round or its components, including cartridge cases, primers, propellant powder, bullets or projectiles, that are used in a firearm, provided that those components are themselves subject to authorization in the respective state party;

“Illicit manufacturing” shall mean the manufacturing or assembly of firearms, their parts and components or ammunition (A) From parts and components illicitly trafficked;

(B) Without a license or authorization from a competent authority of the state party where the manufacture or assembly takes place; or

(C) Without marking the firearms at the time of manufacture, in accordance with Article 8 of this Protocol; Licensing or authorization of the manufacture of parts and components shall be in accordance with the domestic law of each country;

“Illicit trafficking” shall mean the import, export, acquisition, sale, delivery, movement or transfer of firearms, their parts and components and ammunition from or across the territory of one state party to that of another state party if any one of the states parties concerned does not authorize it in accordance with the terms of this Protocol or if the firearms are not marked in accordance with Article 8 of this Protocol;

“Tracing” shall mean the systematic tracking of firearms and, where possible, their parts and components and ammunition from manufacturer to purchaser for the purpose of assisting the competent states parties in detecting, investigating and analyzing illicit manufacturing and illicit trafficking.

In an explanation of its scope of application, the Protocol does not apply to state-to-state transactions or to state transfers in cases where the application of the Protocol would prejudice the right of a state party to take action in the interest of national security consistent with the Charter of the United Nations.

Criminalization

The Protocol’s Article 5 deals with issues of criminalization and notes:

Each state party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses the following conduct, when committed intentionally; (A) illicit manufacturing of firearms, their parts and components and ammunition; (B) Illicit trafficking in firearms, their parts and components and ammunition; (C) Falsifying or illicitly obliterating, removing or altering the marking(s) on firearms required by Article 8 of this Protocol.

Each state party shall also adopt such legislative and other measures as may be necessary to establish as criminal offenses the following conduct; (a) Subject to the basic concepts of the respective country’s legal system, attempting to commit or participating as an accomplice in an offense established in accordance with paragraph 1 of this article; and (b) Organizing, directing, aiding, abetting, facilitating or counseling the commission of an offense established in accordance with paragraph 1 of this article.

Confiscation, Seizure and Disposal

The Protocol goes so far as to require signatories to establish laws on their books designed to enforce the U.N.’s goals. Article 6 of the Protocol establishes the framework:

State parties shall adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation of firearms, their parts and components and ammunition that have been illicitly manufactured or trafficked.

States parties shall adopt, within their domestic legal systems, such measures as may be necessary to prevent illicitly manufactured and trafficked firearms, parts and components and ammunition from falling into the hands of unauthorized persons by seizing and destroying such firearms, their parts and components and ammunition unless other disposal has been officially authorized, provided that the firearms have been marked and the methods of disposal of those firearms and ammunition have been recorded.

Record-keeping

The Protocol’s record-keeping provisions read as follows:

“Each state party shall ensure the maintenance, for not less than ten years, of information in relation to firearms and, where appropriate and feasible, their parts and components and ammunition that is necessary to trace and identify those firearms and, where appropriate and feasible, their parts and components and ammunition which are illicitly manufactured or trafficked and to prevent and detect such activities. Such information shall include:

The appropriate markings required by Article 8 of this Protocol;

In cases involving international transactions in firearms, their parts and components and ammunition, the issuance and expiration dates of the appropriate licenses or authorizations, the country of export, the country of import, the transit countries, where appropriate, and the final recipient and the description and quantity of the articles.

Firearm Marking

One of the Protocol’s most important sections is its Article 8, which imposes firearms marking requirements. Its terms are as follows:

1. For the purpose of identifying and tracing each firearm, states parties shall:

At the time of manufacture of each firearm, either require unique marking providing the name of the manufacturer, the country or place of manufacture and the serial number, or maintain any alternative unique use-friendly marking with simple geometric symbols in combination with a numeric and/or alphanumeric code, permitting ready identification by all states of the country of manufacture;

Require appropriate simple marking on each imported firearm, permitting identification of the country of import and, where possible, the year of import and enabling the competent authorities of that country to trace the firearm, and a unique marking, if the firearm does not bear such a marking. The requirements of this subparagraph need not be applied to temporary imports of firearms for verifiable lawful purposes;

Ensure, at the time of transfer of a firearm from government stocks to permanent civilian use, the appropriate unique marking permitting identification by all states parties of the transferring country.

Firearm Deactivation Requirements

Article 9 of the Protocol imposes firearm deactivation requirements, the essential provisions of which are: A state party that does not recognize a deactivated firearm as a firearm in accordance with its domestic law shall take the necessary measures, including the establishment of specific offenses, if appropriate; to prevent the illicit reactivation of deactivated firearms, consistent with the following general principles of deactivation:

All essential parts of a deactivated firearm are to be rendered permanently inoperable and incapable of removal, replacement or modification in a manner that would permit the firearm to be reactivated in any way;

Arrangements are to be made for deactivation measures to be verified, where appropriate, by a competent authority to ensure that the modifications made to a firearm render it permanently inoperable;

Verification by a competent authority is to include a certificate or record attesting to the deactivation of the firearm or a clearly visible mark to that effect stamped on the firearm.

Export/Import Requirements

Article 10 of the Protocol establishes general requirements for export, import and transit licensing systems. Included within its provisions is the following:

Each state party shall establish or maintain an effective system of export and import licensing or authorization, as well as of measures on international transit, for the transfer of firearms, their parts and components and ammunition.

Before issuing export licenses or authorizations for shipments of firearms, their parts and components and ammunition, each state party shall verify:

(a) That the importing states have issued import licenses or authorizations; and (b) That, without prejudice to bilateral or multilateral agreements or arrangements favoring landlocked states, the transit states have, at a minimum, given notice in writing, prior to shipment, that they have no objection to the transit.

Protocol’s Background

The Protocol’s origins came about when the United Nations convened a Conference on the Illicit Trade of Small Arms and Light Weapons in All its Aspects in July 2001. The purpose of the conference was to decide on steps nations should take to prevent the illicit trade in small arms.

Non-governmental organizations, led by the international anti-gun group IANSA (International Action Network on Small Arms), argued about the supposed difficulty in separating legal and illegal transfers, and called for tough controls on both state and non-state weapons sellers. The result of the 2001 conference was a Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. The Program requires member nations, among other steps, to:

Make illicit gun production/possession a criminal offence;

Establish a national coordination agency on small arms;

Identify and destroy stocks of surplus weapons;

Keep track of officially-held guns;

Issue end-user certificates for exports/transit;

Notify the original supplier nation of re-export;

Disarmament, Demobilization & Re-integration (DDR) of ex-combatants, including collection and destruction of their weapons;

Support regional agreements and encourage moratoria;

Mark guns at point of manufacture for identification and tracing;

Maintain records of gun manufacture;

Engage in more information exchange;

Ensure better enforcement of arms embargoes; and

Include civil society organizations in efforts to prevent small arms proliferation.

The author publishes two of the small arms industry’s most widely read trade newsletters, The International Firearms Trade which covers the world firearms scene, and The New Firearms Business which covers the domestic market. He also offers FFL-mailing lists to firms interested in direct marketing efforts to the industry. He may be reached at: FirearmsB@aol.com.

This article first appeared in Small Arms Review V8N12 (September 2005)and was posted online on April 19, 2013